SHABIR SOHAIL v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

CAMP 166/2023, [2023] HKCA 1174

On An Intended Appeal From [2023] HKCFI 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 166 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1374 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 20 January 2023, Coleman J refused to grant the Applicant leave to apply for judicial review of the Secretary’s decision on 8 September 2022 refusing the Applicant’s request to suspend a deportation order made against him on 20 May 2021.

2.  On 11 April 2023, the Judge refused to grant the Applicant an extension of time to appeal against his order of 20 January 2023.

3.  On 14 August 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s application for leave to appeal against the Judge’s order of 11 April 2023. The basic facts of this case and the Court’s reasons for dismissing the Applicant’s application have been set out in the CA Judgment and will not be repeated here.

4.  By Notice of Motion dated 17 August 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicant states as follows:

“(1) The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Permanent Secretary for Security, refusing my application for judicial review.

(2) The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Secretary for Security, where [the] Secretary was required to give [reasons] justifying [the] decision.”

5.  In his written submissions dated 31 August 2023, the Applicant states that they are lodged and served in support of “the First Applicant’s summons filed on 8 December 2020, pursuant to the directions of the Registrar of Civil Appeals dated 17 December 2020”. The reference to “the First Applicant’s summons filed on 8 December 2020” is not understood. Anyhow, in the written submissions, the Applicant raises the following 3 intended grounds of appeal, namely, the Court of First Instance:

(1)  “incorrectly held that the (non) seriousness of the offences and the First Applicant’s rehabilitation were not mandatory relevant considerations, whereas in fact they were”;

(2)  “did not consider whether (the decision not to suspend/rescind) deporation was (i) based on a material error of law and (ii) failed to make a mandatory consideration, because it was made on the expressed premise that the First Applicant did not enjoy ‘the right to enter and remain in Hong Kong’ within the meaning of section 11 of the Bill of Rights Ordinance (Cap 383) (BORO)”; and

(3)  “did not assess whether the decision (i) was Wednesbury unreasonable and/or (ii) failed to consider a mandatorily relevant consideration, because of the exceptional fact that the Director had, subsequent to the convictions but prior to the deportation order, permitted the First Applicant to remain in Hong Kong as a resident on a dependent visa for four years”.

6.  Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

7.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

8.  No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. The matters raised in the Notice of Motion are all bare allegations without particulars and plainly cannot constitute any valid grounds of appeal. The 3 intended grounds of appeal raised in the Applicant’s written submissions were not raised in his previous summons or affirmation filed in the Court of Appeal. It is not open to the Applicant to raise them for the first time in the present application for leave to appeal. For the reasons given by Coleman J in his decision dated 20 January 2023, the Applicant’s intended application for judicial review is not reasonably arguable and has no realistic prospect of success. The fact that the Director had, subsequent to the Applicant’s convictions but prior to the making of the deportation order against him, allowed him to remain in Hong Kong is irrelevant to the question of whether the Secretary should rescind or suspend the deportation order. The Applicant has not identified any error in the CA Judgment, or raised any viable ground of appeal against the CA Judgment. We are satisfied that the intended appeal has no merits and no reasonable prospect of success.

9.  There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

10.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.